Part B 3. MISLEADING OMISSIONS
3.40 As mentioned in paragraph 3.2 above, a trader may commit a misleading omission offence if he fails to identify the commercial intent of a commercial practice, and as a result, it causes or is likely to cause the average consumer to make a transactional decision that the consumer
would not have made otherwise. While such an intent is apparent in the majority of cases (for example the presence of a price often notifies the commercial intent of the advertisement, or a TV advertisement is clearly perceived to be promoting a product), the commercial intent of an “advertorial” may not be readily apparent if it does not make clear that it is an advertisement. For example, its way of presentation may make it hardly distinguishable from the rest of the publication in which it appears.
3.41 The genuine engagement of celebrities in product promotions is a legitimate practice, but a trader may commit a misleading omission offence if he engages a celebrity to disguise himself or herself as a consumer and arranges for him or her to be photographed by the unsuspecting media at
a product exhibition without disclosing any contractual relationship between the celebrity and the trader, and as a result, causing the average consumer to make a transactional decision that the consumer would not have made otherwise. Please also refer to paragraph 2.11 as regards avoiding the commission of the offence of false trade descriptions where celebrities are engaged.
A beauty company instructs its employees or a blogging agent to post on various online forums and social networking websites very favourable comments to promote its services. The comments are
posted under a disguise as consumers who have patronized the services before. If such non-disclosure of the commercial intent causes or is likely to cause the average consumer to make a transactional decision that the consumer would not have made otherwise, this practice may constitute a misleading omission offence.